Why the quality of the evidence matters

When seeking to obtain a positive outcome in litigation, the quality of the evidence is of prime importance. Among other things, a witness of fact must ensure their evidence is in their own words and that it goes into sufficient detail to discharge the evidential burden. Camfield and others v Uyiekpen and another [2022] UKUT 234 (LC); [2022] PLSCS 145 provides a salutary lesson as to the perils of adopting a formulaic, tick-box approach to witness statements. The standard test Section 41 of the Housing and Planning Act 2016 enables a tenant to apply to the First-tier Tribunal for a rent repayment order to be made against their landlord if they are guilty of having committed a housing-related offence. Section 40 of the 2016 Act lists the relevant offences for which an RRO can be made. It includes the offence under section 72(1) of the Housing Act 2004 of having control of,or managing a house in multiple occupation, which is required to be licensed but is not so licensed. A building or part of a building will be classed as an HMO if it meets one of the tests set out in section 254 of the 2004 Act. In Camfield the relevant test was the “standard test”. A condition under the standard test is that a tenant must occupy the living accommodation as their only or main residence or be treated as so occupying it (section 254(4)(c)). Pursuant to section 55(2) of the 2004 Act, only HMOs which fall within the prescribed description need to be licensed. Article 3 of the Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018 provides that an HMO which satisfies the standard test will be of a prescribed description if it is occupied by five or more persons living in one or more separate households. Key point A concise, formulaic, tick-box approach to the evidence necessary to prove the elements of a criminal offence to the required standard risks key elements not being addressed The facts The respondents, Nehizena Uyiekpen and Thrilla Gukuta, sublet a four-bedroom house in Newham, London, E20, to the appellants. Three of the appellants, Rachel Camfield, Ryan Donelly and Rohail Rafi, were granted tenancies of the property in December 2019. A fourth appellant, Nicole Ducasse, was granted a tenancy in January 2020. From 21 December 2019 until 21 March 2020 a fifth tenancy of the property was granted to Kate Tseng, who was not an applicant to the application for an RRO.  In April 2020, Donelly moved out of the property. In June 2020, the property was occupied for a short period by five tenants when a person known as “Ali” moved into the property. Ali stayed in the property for only eight days and moved out on 14 June 2020. In July 2020, Uyiekpen and Gukuta granted further tenancies of two vacant rooms in the property to a Brazilian family of five. This led one of the appellants to notify the superior landlord’s managing agent of Uyiekpen and Gukuta’s actions. They subsequently brought the sub-tenancies to an end. In October 2020, the appellants applied to the FTT for an RRO. They claimed their landlords had committed an offence under section 72(1) of the 2004 Act.  The quality of the evidence The FTT dismissed the application. Although it was not in dispute that between 19 January 2020 and 21 March 2020 the property had been occupied by five individuals living in separate households, on the evidence the FTT was not satisfied that Tseng had occupied the property as her only or main residence, such that the standard test for an HMO was met. In the circumstances, the FTT was not satisfied beyond a reasonable doubt that an offence had been committed under section 72(1). The appellants argued on appeal that the FTT had erred in its findings. Relying on case law, they argued that direct evidence was not required from all occupants of an HMO in order to prove its status as the same beyond a reasonable doubt. Direct evidence from some occupants coupled with supporting documents could discharge the burden of proof. Further, it was open to the FTT to draw inferences as to the relevant status of a tenant’s occupation from facts which it found proven, provided that it was satisfied to the criminal standard of proof.  The UT upheld the FTT’s decision. It was stinging in its criticism of the presentation of the appellants’ witness evidence. It described the same as being too concise and impersonal and gave the impression of being based on “a pro-forma draft”. The UT also observed that the witness statements did not provide any information in respect of Tseng’s occupation of the property. The FTT could not be criticised in finding that there was not a single piece of evidence directly addressing the quality of Tseng’s occupation of the property or the facts relevant to the same. Further, it was not obliged to resort to unreliable inferences in the circumstances. Elizabeth Dwomoh is a barrister at Lamb Chambers Image © Edward Lich/Pixabay